Argument preview: Drug-sniffing dogs and privacy

Posted Tue, October 30th, 2012 5:54 pm by Lyle Denniston

(NOTE TO READERS: This blog in July posted a story, in non-legal terms, on these cases. It can be read here.)

The Supreme Court will hold two hours of oral argument, starting at 10 a.m. Wednesday, on constitutional issues on the use of drug-sniffing dogs to search private property. The Court will be hearing two cases, for one hour each. Gregory G. Garre of the Washington office of Latham & Watkins will argue for the state of Florida in both cases – Florida v. Jardines(11-564) and Florida v. Harris(11-817). The federal government supports Florida in both cases; in Jardines, it will be represented by Nicole A. Saharsky, an Assistant to the U.S. Solicitor General, and in Harris, by Joseph R. Palmore, another Assistant to the Solicitor General. Representing Joelis Jardines will be an assistant public defender in Miami, Howard K. Blumberg, and representing Clayton Harris will be an assistant public defender in Tallahassee, Glen P. Gifford.

Background

The Supreme Court has grown quite familiar with a common police tactic, using trained dogs to help them search for illegal drugs by sniffing out their odor. In several different factual situations, the Court has ruled that this does not amount to a search under the Constitution’s Fourth Amendment. Now, for the first time, however, it will be facing the use of that tactic at a private home. And, for the first time, it will be examining whether police have to prove in court that such a dog can actually be trusted to detect only illegal drugs, before they may conduct a further search.

For much of the past generation, the Court has been largely sympathetic to the detective work of police dogs. In 1983, for example, it endorsed that tactic as one that did not intrude very much on a person’s privacy. In one case that year, it said that, if the dog “alerted” to the smell of a suitcase, that was enough to allow police to open it to check for drugs. And, a few weeks later, it said explicitly that using the dog for that purpose did not even constitute a search for constitutional purposes.

Since then, the Court has found no constitutional problem if a trained dog was used to inspect a package that had been damaged in transit and was leaking a white powder, to sniff around the exterior of a car stopped at a highway checkpoint set up to find drugs, or to sniff the exterior of a vehicle that had been legally stopped for a traffic violation.

Left open, though, has been the question of whether the Court would be as tolerant if police took the dog to a private home, to check to see if drugs could be found inside. The Court has always provided greater Fourth Amendment protection for searches of the home. So, will the use of a drug-sniffing dog in that setting actually be a search, for which police would at least need a court-approved warrant?

The Florida Supreme Court answered that question “yes.” It ruled that sending the dog onto the porch of a private home, to sniff at the door, was a search, and the Fourth Amendment thus applied

In that case, police — acting on a tip that a house in Miami was being used to grow marijuana (but without checking whether the tip was reliable and without getting a warrant) — went to the home of Joelis Jardines. After watching the house for fifteen minutes, the officers saw no activity, but they did notice that all the blinds were closed and the air conditioner kept running, indicating a steady heat inside. A K-9 officer arrived a bit later with Franky, trained to detect marijuana.

Franky went onto the porch, circled around, sniffing, and then sat down. To his officer partner, that was an “alert” to the odor of marijuana, coming from under the front door. Police used that to get a warrant, and their search led to the discovery of marijuana plants.

Jardines, charged with illegally growing marijuana, sought to block the results of the search, claiming a violation of his right of privacy at home. Ultimately, the Florida Supreme Court agreed.

As that case reached the U.S. Supreme Court in the state of Florida’s appeal, it involved two issues: whether the use of Franky on the porch was a search, and whether the officers’ other conduct in watching the house also was a search under the Fourth Amendment. The Justices granted review only of the search issue involving Franky. On that issue, Florida had the support of eighteen other states.

In the Justices’ prior rulings on drug-sniffing dogs, they had only hinted that a dog’s “alert” to a drug’s odor was enough, by itself, to give the police sufficient reason to believe that drugs were present, so that they could then obtain a search warrant. In other words, it was not clear whether such an “alert” gave the police “probable cause” to justify a warrant or a further search.

That issue, too, went to the Florida Supreme Court, and once again the K-9 team lost. The state court ruled that the fact that a police officer claimed the dog was trained to detect certain drugs was not sufficient to treat an “alert” as probable cause.

Because a dog cannot be questioned in court about his skills, the state court decided, police need to be able to show the court sufficient evidence to prove that the dog could do what they claimed – pick out a certain drug from its odor. The judge, the decision said, has to be able to evaluate how the dog was trained, what was necessary to get that training formally certified, how the dog had performed in the past in detection work, and how well trained the dog’s handler was. The judge would then decide, based upon “the totality of circumstances,” whether the dog was qualified for police work.

That case grew out of a routine traffic stop by a K-9 officer in the community of Blountstown, Fla. Along with his K-9 partner, Aldo, the officer was on patrol. The officer noticed a passing truck carrying an expired license plate, and pulled it over to the side of the road. The driver, Clayton Harris, was shaking noticeably and was breathing rapidly – signs that the officer thought were indications that Harris was on drugs.

Harris refused to give permission to search the truck. So, Aldo was used to smell around the truck’s exterior. He alerted to an odor on the door handle on the driver’s side of the truck. The officer took that as justification for a search of the truck’s interior. The search turned up ingredients for making methamphetamines – an illegal substance to which Harris apparently was addicted.

Harris was charged with possessing materials for an illegal narcotic. After his lawyer’s effort to block those materials as evidence, Harris pleaded no contest to the charge, but kept open his right to appeal the use of that evidence. He was sentenced to two years in prison. Ultimately, the Florida Supreme Court ruled that the materials had been seized illegally.

The state of Florida took the case on to the U.S. Supreme Court on the sole issue of whether a trained dog’s “alert” was sufficient to establish probable cause to search the interior of Harris’s truck. The state’s petition was supported by nine other states, and by the National Police Canine Association.

The state’s arguments

Florida’s lawyers have treated both of the issues in these two cases as largely settled previously by the Supreme Court. They contended that the Court has repeatedly ruled that drug detection by dogs is not even covered by the Fourth Amendment, and has strongly indicated that trained dogs provide a reliable, and largely non-intrusive, mode of searching for illegal drugs.

The prior precedents, Florida asserted, should not be put aside just because the setting of a dog’s detection was the exterior of a home. Those precedents have stressed that such a dog does not really threaten privacy, the state argued, because the creature is trained only to detect something that is clearly illegal – narcotics.

The use of a drug-sniffing dog does not tell officers what is going on inside a private dwelling, other than the reality that a crime is occurring inside – and constitutional rights of privacy do not shield criminal activity from detection, the state argued. Society does not acknowledge any privacy interests in carrying on crime, the state stressed.

The state also contended that the lower courts are split on whether it makes a difference to constitutional analysis that a drug-sniffing dog is used outside of a private home. What mattered in Jardine’s case, it argued, is that it was a dog doing a search, not that it was a house being searched.

Florida used some of the same arguments in defending the point that a dog’s “alert’ should be enough to authorize police to get a warrant, or to conduct an on-scene search of a vehicle they have stopped for valid reasons. A sniff search by a dog is entirely unique, and reveals nothing that is not already illegal.

The Florida Supreme Court, the state’s attorneys said, wrongly focused on the possibility that a trained dog will make false “alerts” or that the dog’s trainer will give the animal cues to encourage it to “alert.” There is no requirement under the Fourth Amendment, the state asserted, that a police investigative technique prove to a certainty that a crime is being committed. While proof beyond a reasonable doubt is necessary to convict someone of a crime, only a “reasonable belief’ that crime is occurring is needed to justify a search, and trained dogs can produce that kind of result.

The state court also went too far, Florida contended, by insisting that a dog be capable of detecting the difference between residual odors and the smell of actual drugs.

The Justice Department has joined in the case to support Florida’s arguments, arguing that it is already well established that a drug-sniffing dog does not make a search in the Fourth Amendment sense, and contending that it is wrong for courts to try to make a constitutional matter out of the degree of training that a drug-sniffing dog has had.

The states supporting Florida argued that the state Supreme Court’s rulings in these two cases will seriously impair the effectiveness of the police use of drug-detecting dogs, but with no corresponding gain in privacy for individuals investigated by this technique.

The challengers’ arguments

Lawyers for Joelis Jardines, arguing in the drug-sniff-as-search case, relied heavily upon the greater expectation of privacy that one has in one’s own home. The constitutional problem, they contended, is not so much that the dog will pick up revealing scents about private activity occurring inside the home as that the scene created by the use of a police dog next to a home is intimidating and exposes the occupant to humiliation and scorn.

The home is a place to which one retreats to be away from the pressures of life, and that quality is compromised when police bring a potentially menacing dog to prowl the perimeter of the property. The large gathering of police outside Jardines’ home, his lawyers argued, illustrated how the tranquility of the home can be greatly disturbed.

The Florida Supreme Court, his lawyers said, had done nothing more than follow clearly established Supreme Court precedents on the sanctity of the domestic sphere.

Clayton Harris’s attorneys, presenting his defense in the “alert”-equals-probable-cause case, contended that prior Supreme Court precedents on that point were based upon the assumption that the dogs in those cases were, in reality, “well-trained.” The training and certification of the dogs in those proceedings was not in question, but the scope of that is the only issue in his case, Harris’s counsel contended.

Other courts, these lawyers said, have taken into account whether a drug-sniffing dog did well in field performances as a factor in the probable cause analysis. But in Harris’s case, their brief contended, the police did not even keep records on how Aldo had performed and what the results were in situations where he had “alerted.”

The requirements imposed by the Florida Supreme Court on police who want to use drug-detecting drugs were not onerous, Harris’s counsel argued. They need only keep field performance records, so that a judge making a probable cause determination has something more than a mere claim by police that a given dog is, indeed, qualified to sniff out drugs.

Analysis

The Supreme Court, it is clear from its past rulings on drug-detecting dogs, has no interest in curtailing police use of that investigative technique. It recognizes the value of trained police dogs, but it may also have an interest in providing new guidance on how that technique does or does not satisfy the Fourth Amendment.

Of the two cases now before the Court, the probability is that Florida has a better chance of prevailing on the issue of the training and certification of dogs than it does on the use of such a dog outside a private home. If, as Florida, other states, and the Justice Department argue, more stringent judicial standards for police dog training will make it less likely that police will continue to rely heavily upon this technique, that almost certainly works in the state’s favor.

The Florida court’s ruling, if upheld, may well introduce significantly greater complexity into determining when a dog’s “alert” justifies officers to go further to actually find illegal drugs, and that complexity may vary in detail from one jurisdiction to another, thus depriving police of clear guidance.

But the Court seems less likely to view the use of a dog immediately next to a home, or inches away from its private enclave, as the constitutional equivalent of doing so during a traffic stop or at a highway checkpoint or in an airport or train terminal. The Court clearly views itself as a sentinel over domestic privacy, and it regards the immediate exterior of a home very little differently than the interior itself. Just as police may well be found to exceed their authority if they enter onto the “curtilage” of a private home – that is, its surrounding yard – they may run the same risk by going even closer, as on the porch.

Major Cases

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Air and Liquid Systems Corp. v. DeVries In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.

Nielsen v. Preap The judgments of the U.S. Court of Appeals for the 9th Circuit -- that respondents, who are deportable for certain specified crimes, are not subject to 8 U. S. C. §1226(c)(2)’s mandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail -- are reversed, and the cases are remanded.

Washington State Department of Licensing v. Cougar Den Inc. The Supreme Court of Washington’s judgment -- that the “right to travel” provision of the 1855 Treaty Between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation -- is affirmed.

Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.